Saturday, October 28, 2006

Yesterday's Hearing

Some more considered reflections on yesterday’s hearing:

1.) The Psychologist Isn’t In.

Nifong has played many roles in this case: lead investigator, police department spokesperson, prosecutor, political demagogue. But perhaps the task for which he possesses the least qualifications is court-appointed medical expert.

Dr. Nifong made his first appearance at the September hearing, when—posing as an armchair psychologist—he justified his decision to change from the 30-minute attack publicly described by both the accuser and police affidavits. The attack, said he, actually took only five minutes—10 at most—because “when something happens to you that is really awful it can seem like it takes place longer than it actually takes.” The real reason for the change, of course: Reade Seligmann has unimpeachable evidence that no possibility exists of his committing a 30-minute crime during the period the accuser was at the lacrosse captains’ house.

Yesterday, Nifong explained that he refrained, before seeking indictments, from hearing the accuser tell her own tale because of her allegedly “traumatized” state. When defense attorneys pressed for a description of what made him deem the accuser excessively traumatized, Dr. Nifong made his re-appearance.

His claim? The accuser was sullen (she spoke barely 15 words in the meeting, according to Nifong); struggled to establish eye contact; and seemed “on the verge of tears.” The former two items seem more characteristic of someone concealing the truth than a person experiencing excessive trauma. The third, meanwhile, seems dubious in light of this bombshell video interview released last night by 60 Minutes, in which the former manager of the accuser’s strip club asserts that she performed normally (both physically and emotionally) in all respects during the time Nifong is now terming her too traumatized to speak.

2.) Lead Investigator Nifong

An item that deserves far more attention than it’s received: Brad Bannon’s statement that according to police documents, Capt. Lamb told officers on March 24—a scarce eight days into the investigation—“to continue with our investigation, but to go through Mr. Nifong for any directions as to how to conduct matters in this case.”

These two video interviews from WRAL give a sense of the astonishment among former prosecutors regarding Nifong’s claim not to have spoken with the accuser about the facts of the case. But Nifong’s admission describes a situation well beyond a district attorney not having interviewed the accuser. In light of Bannon’s revelation, we know now that this is a case in which the city of Durham sought charges against three people without the person supervising the police investigation (in this case one and the same with the DA) even interviewing the accuser. This, truly, is astonishing.

3.) Too Cute by Half

Nifong is the master of the deceptive insinuations. A good example came in his interview with Newsweek, when he left the impression, falsely, that evidence existed of a date rape drug.

But yesterday his gambit backfired, and badly. Nifong appeared to have a two-track strategy toward avoiding disclosing the contents of his April 11 discussion with the accuser. First, he suggested that even if he had gone over the case with her, the defense wasn’t entitled to the discussions—since prosecutors’ notes of pretrial meetings with the accuser inherently involve strategy issues; or because prosecutors can’t function as stenographers and be expected to have substantially verbatim recording.

Bannon, however, quickly called him on this point, asking if he was now claiming that he didn’t have to turn over notes of a conversation that did occur with the accuser. Responding to a direct question from Bannon, Nifong backtracked and asserted that no such conversation occurred on April 11.

That response revealed Nifong’s second track: his hope to avoid asserting that he never spoke with the accuser about the case by hinting—without ever coming out and saying so—that he might have talked with her on another occasion.

But Bannon caught him here as well, saying that the defense wasn’t “wedded” to the April 11 date, and wanted to know once and for all whether Nifong had ever spoken with the accuser about the facts of the case.

In his previous court appearance, Nifong accepted the fashion advice of his former foe turned ally, Mark Simeon. Simeon, who endorsed Nifong’s election the day after the DA started his ethically dubious public denunciations of the players, urged Nifong to wear black suits, light shirts and power ties, advice that Nifong followed in the last hearing. (Accoridng to Newsweek, Simeon told the DA that women like power.) Yesterday, however, Nifong appeared in a bland gray suit, easily overshadowed by the wardrobe of his citizens’ committee co-chair and resident homophobe, Victoria Peterson.

The DA entered the court pushing a cart with discovery documents, looking almost giddy. Nifong largely eschewed his trademark smirks or eye-rolls (I saw only one occasion when he did so). Instead, he spent most of his time wringing his hands; when he’s nervous, he has a distracting habit of rapidly blinking his eyes. His behavior doesn’t exactly inspire confidence.

5.) The Medical File

The judge promised an in-camera review of the accuser’s non-case medical file, which he estimated totals between 6 and 10 inches in bulk. The mere size of the file can’t be good news for Nifong.

6.) Gottlieb

Nifong gave no reason for Himan replacing Gottlieb (who briefly went on medical leave, but now is back at work) as lead investigator for the case. Nifong made clear that Himan’s elevation wasn’t caused by Gottlieb’s medical problems. It doesn’t take a genius to notice the coincidence between the timing of Gottlieb’s removal and revelations of his record of excessively arresting Duke students for minor offenses.

The move probably is a tactical error: Gottlieb is involved in the case one way or the other, and removing him now makes it seem that even Nifong gives credence to the attacks against the sergeant.

7.) The Judge

Several people asked about my impression of Judge Osmond Smith, but it was hard to make a clear determination. As Brad Bannon remarked, Nifong’s assertion that he’s never spoken to the accuser about the case—except to ask if she’s used ecstasy—stretched credulity. In theory, the judge could have called him on this point. In practice, the system assumes a minimum of good faith on the part of all sides; when one side, in this case Nifong, exhibits none, there aren’t easy ways to make the system work.

I was more surprised that the judge didn’t rebuke Nifong for his assertion of having received no reciprocal discovery from the defense. Seligmann’s attorneys quickly disabused Nifong of that notion, but the judge might have interjected before they had to do so.

North Carolina officials and political leaders continue their deafening silence in this case of obvious prosecutorial abuse. They can't claim they don't know what's going on. It's time to hold all of them accountable.

North Carolina officials and political leaders continue their deafening silence in this case of obvious prosecutorial abuse. They can't claim they don't know what's going on. It's time to hold all of them accountable.

Is the case still in the "second setting"?At what setting will this case be for the December hearing?The judge has said that he will not entertain any depositive motions until the third setting. Are we there yet? Was there any mention in this hearing on when the case will get to the "third setting"?

The sad fact is that the authority figures who could put an end to the hoax are instead covering Nifong's back until the election -- letting him pretend that he has a serious case that he has prosecuted in a serious way. The judge could have called him on his remarks in court, as KC says, or asked him to respond to one or more of the defense's substantive motions even before the 3d setting, but hasn't. The NC Bar could have ruled on the complaints and grievances it has undoubtedly received (those concerning pre-indictment publicity don't depend on conclusion of the case for resolution). Instead all are staying silent until the hoax is consummated on election day.

Keep in mind that if Liefong survives the recall -- and I predict he will -- then he will take it as a confirmation that he is doing the "right thing," and will be even more emboldened.

Democrats in North Carolina MUST have the support of two constituencies in order to be elected: blacks and white liberals. As we have seen, both groups as a whole continue to be the source of the True Believers, holding that since there is no way for the accused to absolutely prove innocence beyond ANY doubt, that itself is PROOF that they committed the rape.

Thus, we can expect the North Carolina Democrats to stand behind their man, Liefong. Most politicians, regardless of party, do not care about things like the lives of innocent people. They want to get elected and will do what they need to do. That is why the North Carolina Democrats continue to support this false prosecution -- and it also is the reason that North Carolina Republicans have stayed away from the story.

After all, if the Republicans were to make this an election issue, then they would be accused of "racism," and that always makes them run for cover. And because all of this operates via elected officials, we see a bunch of liars and cowards and self-seeking reprobates being in charge. I suppose that our expectations that elected officials (from prosecutors to judges) "do the right thing" is way too optimistic. For Judge Smith, "doing the right thing" is "protecting the system." For Liefong, it is protecting his job, and for everyone else, it is keeping their party in power.

For many years, I have written about the horrid abuses of law in the federal system. Liefong -- and by implication, the State of North Carolina -- is even outdoing the feds. That takes some doing, but also demonstrates just how rotten these people really are.

My advice to readers is not to live in North Carolina if they value their lives and liberty. From the Little Rascals case to Alan Gell to the lacrosse case, those in the "justice" (sic) system in North Carolina are nothing but crooks and liars.a

"The real reason for the change, of course: Reade Seligmann has unimpeachable evidence that no possibility exists of his committing a 30-minute crime during the period the accuser was at the lacrosse captains’ house."

Another reason for this change by Nifong is that the original statements by the "outcry witness" was that she and the accuser were only separated from each other for 5 minutes at the most. That changed somewhat in her 60 Mins interview but Nifong didn't know that was going to happen when he changed his timeframe. He had to fit it into the possible time that Reade was there and the amount of time that the two were separated. The only problem with that is they have to be the exact same 5 mins.

The past two days of information from your posts have been excellent. The links are easily accessible(video) and the content direct and factual. i wish this DA would even pretend to be credible. If you know, can you relatre the actual discovery turned over by Nifong regarding any statements she made to anyone. I am a little lost here. he seems to be changing the time frame but can't possibly do so if he already handed over the accusser's statement to Police.the medical evidence is being reviewed "in camera". These people have been indicted for months. It seems the judge in this case doesn't read the paperwork either.What is the trial timeline and for motions? Someone asked about same in comments. I don't understand how a bill of particulars caN BE filed if the evidence hasn't been turned over. This is "trial by ambush". It is in direct violation of discover rules. The state has an ongoing duty to provide but they can't withhold items generated in March/April. Thanks for a great site.

To Mr. Anderson, Having lived in North Carolina during the Little Rascal case, your analysis of the NC judicial system is completely accurate. That case was completely absurd, yet as in this case, no one would step and say, "Enough is enough." For rational, justice seeking individuals, the silence in North Carolina is maddening and defies logic. However, you are correct. Politicans are looking out for number one, with no regard to the lives of innocent people.

The comments from mainstream journalists that the blogs don't do real journalism are exposed by K.C. excellent reporting. And let's face it, the good stuff that mainstream reporters have used comes mostly from the blogs. For example, if one wishes to find which bar association codes Liefong has broken, all they have to do is to pull up Durham-in-Wonderland. Likewise for about everything else.

I shudder to think of what would be happening if it were NOT for the blogs. The N&O would be under no pressure and neither would any other news outlet. People would be taking the NY Times seriously, as opposed to the paper being pilloried by people like KC and Stuart Taylor.

We live in an age of absolute prosecutorial abuse, but at least there are weapons with which we can fight back. You do great work, K.C., and you are worthy of a Pulitzer for sure.

Isn't there a way to fight back legally — now? What if the unindicted players sued the city of Durham, the police and the N&O over the vigilante poster and other abuses? The poster offers a clear case of defamation and libel. Why wait? Why not get the legal wheels churning?

The new judge is either asleep, incompetent or not doing his homework to have allowed the Friday hearing to conclude without so much as an admonishment from the bench. This is truly the sloppiest legal proceeding I have ever heard of. NC residents should cower in shame to have such a sham going on in Durham County. Does the Governor or Attorney General not realize that people from all over this country are watching this fiasco played out in the State court system. Who in their right mind would risk moving a viable business into this State?

This isn't a terribly difficult question to answer: why would any innocent person want to go to trial? In this particular case, why would the families involved want to spend millions in legal fees and months of their lives when we have a case constructed on a tissue of procedural violations?

As for Nifong's desire to go to trial: he has little option but to do so; should he drop the charges now, as I've noted before, he almost certainly would be disbarred. It's likely he will anyway, but his only chance of avoiding this fate is to somehow get to trial and somehow get a hung jury.

As for the unverified "rumors": they contain no truth. I would delete them from the site, but cannot partially delete comments, and am loath to delete the entire comment.

To 11:37 Who are you trying to kid? If Nifong had the sort of evidence you suggest, he would have had it for months. He has had compelling reasons all those months to use such evidence. He has been eviscerated day by day in the media; his silence is noteworthy in the context of this election. There is a pattern here: Those who still defend Nifong conjure up theories and suppositions; the defense brings out solid, irrefutable facts. This has been constant from the start. Since no rape occurred, this is not surprising.

you always delete my comments but that is ok becasue i know that you read them kc and that is important. i know i am right about what i am saying and that you do not know shit from shinola about what is happening down here and are therefore wrong most of the time. until last week you were actually writing that cheek was the front runner with a straight face. i wrote otherwise many times and you deleted me but like i said, that is ok as you know i was very much right and you were full of it. you cannot delete the raleigh paper's poll that shows nifong as ahead. you deleted the so called rumor because you knew them to be false but as i said above, you also said cheek would win in a landslide. as to the rumor being false, who knows at this time? others have reported the same thing. if you check on the wtvd board, cash micheals himself said there were emails that hurt the players that nifong was bringing into evidence. Dvds with emailswere handed over friday according to the durham paper.

Cash Michaels said that apparently they found stuff on their computer that was "embarassing". He did not use language that indicated it was the "smoking gun". One can guess that one or more of them had some porn or something on the computer.

is Nifong playing for November 7, and then he will dismiss charges? Or is he committed to a jury trial regardless of the consequences. This continues to be one of the most shocking cases of prosecutorial misconduct in modern times ... and that includes the jihad against Rush Limbaugh and Ronnie Earle's grand jury shopping in Travis County Texas against Tom DeLay. It is utterly indefensible.

What are you talking about? When has KC said that Cheek was going to win the election? For that matter, I don't recall anyone saying that. If Nifong wins, it does show the nation that Durham must contain either uneducated souls or people who don't mind innocent people being railroaded by a corrupt DA. However, most people have not questioned the validity of the N&O poll, but do have doubts about Monk's poll. By the way, it is not news that the police have players' e-mails. That has been common knowledge for months. There have been hundreds of "rumors" about this case, however, the facts have always landed on the lax players' side. On a side note, your post is rambling and difficult to follow.

Obviously, Nifong has no evidence to support his charges. He will try to embarrass the players by using e-mails and information from their computers, hoping to settle the case before trial by threatening to use this in the trial. What about the accuser's computer? Was she checking out the players' families before deciding which players to accuse?

Some great thought and commentary. This is a great site. I think Prof. KC is correct in not allowing unsubstatiaite rumor in the posts. Other than that, let the trolls post all they want if they use the proper format. The posts of some of these trolls is very revealing of who and what they are. Everyone is entitled to their say, and Prof. KC fully realises that principal.I advise all to review the Prof.'s comment back in March, April, etc... KC was on point then and is still on point. I hope the accused's legal team reads these sites. The info and opinions could not hurt and they seem to be on top of their game. They are at quite a disadvantage because the Pros. has refused to reveal evidence dispite the Rules of Discovery. The big issue is Nifong himself was complaining about being made a witness(possibly). At some point this Judge has to rule on something. Judge is taking a wait and see approach and may dismiss this entire matter giving Nifong a way out. He will still be punished. You can only keep things local for so long and I believe all parties are holding their collective breath until after the election.

This situation never could happen in New Jersey,where the prosecutors are appointed by the governor(even nefarious ones like McGreevy).Nifong wouldn't have dared indict Seligman if his Essex Fells neighbor,mob boss Anthony Boiardo,was still alive.Those Soprano stories aren't fictional.

To 3:07. I don't know if you are writing with a straight face, but KC has never said Cheek is going to win in a landslide, or is a front runner.What KC said is that he supports RN-VC. KC has never claimed what you say he did. And if KC delets your posts, I presume it's because you post false claims such as alleging KC had said something he did not.

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review